Fertility treatment is now only available to opposite-sex couples employed by OSF, a Catholic non-profit health care system based in Illinois.

According to a July 18 Bloomberg Law report, OSF recently implemented this restriction to its employee health care benefit plan for its 15 hospitals and over 24,000 employees.

Traditionally, insurance plans have used the Centers for Disease Control and Prevention’s definition of infertility, which defines the condition “as not being able to get pregnant (conceive) after one year (or longer) of unprotected sex.”

In the process of changing its third-party health plan administer, OSF changed the definition of infertility to “the inability for a married couple of opposite-sex spouses to conceive.”

This new definition eliminates fertility services for single employees and same-sex couples, whether married or unmarried.

Legal scholars have been quick to point out that the OSF change flies in the face of federal regulations, the Affordable Care Act, Title 7 of the Civil Rights Act and the Bostock v. Clayton County Supreme Court ruling.

This is not the first case of this kind to emerge this year.

In April, Corey Briskin and Nicholas Maggipinto, a married gay couple in New York City, challenged the city’s health insurance policy, claiming it was discriminatory. The couple is seeking in vitro fertilization services to use with a surrogate they intend to pay out of pocket.

Like most benefit plans, NYC uses the CDC definition of infertility, which does not define the act of sex or intercourse. However, Briskin and Maggipinto claim they were denied benefits because plan administrators defined intercourse as only between a man and a woman.

The case presents several legal challenges, first, with regard to the definition of infertility and, second, with regard to whether a benefit plan should be forced to pay for services provided to a third-party like a surrogate or a donor.

Both cases build on a September 2021 lawsuit filed against health insurance giant Aetna by Emma Goidel after she had to pay around $45,000 out of pocket for fertility treatments.

Aetna’s previous policy required same-sex couples to finance the first 12 months of treatments because same-sex couples cannot conceive naturally. Goidel argued that the policy was discriminatory and violated section 1557 of the Affordable Care Act. Two days later, Aetna announced a change to its policy.

What makes the OSF case unique is that it redefines infertility.

As a Catholic health care system, it is expected that OSF would follow the dictates of the Ethical and Religious Directives for Catholic Health Care Services, which governs all Catholic hospitals in the U.S.

Directive 38 reads, “When the marital act of sexual intercourse is not able to attain its procreative purpose, assistance that does not separate the unitive and procreative end of the act, and does not substitute for the marital act itself, may be used to help married couples conceive.”

Traditionally, the Catholic church and many conservative Christian groups have been opposed to fertility treatments like IVF, sperm and egg donation, or surrogacy, asserting that they would violate the marital act or relationship.

So, it would have been consistent with past precedent for OSF to take this position rather than to redefine infertility. Directive 38 would still apply regardless of the definition of infertility, as same-sex couples still need third-party gametes for conception.

Fertility treatments designed to stimulate ovulation or increase sperm production would not be in violation of the marital act or relationship, but without a means of fertilization, same-sex couples would fail to meet a therapeutic goal set forth in the directive.

In short, even if all faith-based groups at some point accepted same-sex marriage as normative, many would still reject the use of third-party gametes as a violation of the marital relationship as set forth in Directive 38.

More and more companies are adding fertility services to their benefit packages to attract and retain employees. Therefore, we will be seeing these cases more and more.

The Mercer National Survey of Employer-Sponsored Health Plans has been tracking these developments for the last two decades. Companies with 500 or more employees have gone from almost no coverage to more than half of them now offering some type of IVF coverage.

Currently, 33% of large companies are offering fertility drug therapy, 27% are providing IVF coverage, and around 40% still offer no fertility coverage.

All of this will probably get more complicated in a few years as Narendra Kaushik, an Indian surgeon, announced plans in May to transplant a donated uterus into a trans woman with the hopes of using IVF to assist the patient in birthing a child.

There have only been a few uterine transplants and only one recorded transplant involving a trans woman who, in 1931, had the procedure done but, unfortunately, died a few months later due to an infection.

Today, there have been more than two dozen children who have been born following uterine transplants, and none to trans women. While all of this is promising, it is very experimental and still does not solve the need for third-party gametes.

This brings us back to the subject of fertility treatments for same-sex couples.

While OSF has clearly defined infertility as a condition that only impacts opposite-sex couples, it is also clear that many faith groups, regardless of their position on same-sex relationships, have moral objections to specific types of reproductive technology, especially ones that involve a third-party gamete or, in their view, violates the marital relationship.

What is clear is that these are big questions, and our moral and faith communities need to become informed and willing to openly and compassionately discuss these sensitive topics.

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